Opinion
FSTCV176034146S
07-03-2018
Elinor HERSHAFT, Individually and As Trustee, Andrew E. Hazen, Trustee et al. v. PLANNING AND ZONING COMMISSION OF the TOWN OF GREENWICH et al.
UNPUBLISHED OPINION
OPINION
A. WILLIAM MOTTOLESE, JUDGE TRIAL REFEREE
In the companion case of Hershaft v. Greenwich Planning and Zoning Board of Appeals, CV17-6034022 ("the board") this court sustained the appeal brought by these plaintiffs from the granting by that board of two variances and a special exception which would have permitted as an accessory use, the erection of a barn/stable, riding arena and shed/muck building to accommodate fourteen horses in the RA-4 zone. The court concluded that since the variances had been improperly granted, the special exception was necessarily invalid because the variances were integral to and inseparable from the special exception. The stipulation made in the companion case to the fact that the plaintiffs have been the owners of the property which abuts the applicant’s property at all times pertinent to this appeal applies with equal force to this appeal. Accordingly, the plaintiffs are found to be statutorily aggrieved. G.S. § 8-1(1), Goldfeld v. Planning and Zoning Commission, 3 Conn.App. 172 (1985).
In the present case the same property owners appeal from the granting of a special permit and site plan approval by the lead defendant ("the commission") which permit the applicant "to maintain the existing home and demolish an existing cottage and two outbuildings, and construct an 8,478 sq. ft. horse stable and barn, an open riding arena, and a 1.538 sq. ft. storage garage the result of which would exceed the 150,00 cubic feet building volume threshold on a 14.186-acres property located at 0 and 131 Old Mill Road in the RA-4 zone."
Demolition of these structures is not an issue in this case.
The need for a special permit derives from § 6-101(a) of the Greenwich Building Zone Regulations ("the regulations") which in pertinent part provides as follows: "No new construction for any use or uses including uses for which special exception has been granted pursuant to Sec. 6-19 to 6-21 inclusive which would result in a structure or group of structures which individually or together would total in excess of 150,000 cubic feet in volume above established grade ... shall be permitted except when authorized by special permit by the Commission pursuant to Sec. 6-17 of these Regulations."
While the regulations do not define a cubic foot, the dictionary definition is "having three dimensions, or having the volume of a cube whose length, width and depth (or height) each measure the given unit." Webster’s New World Dictionary 2d Coll. Ed. at 343.
The first variance granted by the board would have permitted the construction of the riding arena to a height of 36 feet when § 6-144(a) of the regulations limits the height of accessory buildings in all residence zones to 25 feet. It is obvious that an 11-foot difference in the height of the riding arena will materially affect the cubic volume of the structure although it is impossible for the court to determine the actual quantity of that volume or whether the volume reduction will bring the structure below the threshold of 150,000 cubic feet set forth in the regulation, thereby obviating the need for the special permit. Assuming for the purpose of this decision that it does not, this leaves open the issue raised by the plaintiffs that the particular use which the commission approved is not a permitted use in the RA-4 zone.
This court held in the companion case that the special exception granted by the board cannot stand not because the riding arena and related housing units are not permitted accessory uses but rather because the special exception is inseparable from the invalid variances and therefore must fall with the variances. This conclusion requires a recognition that the commission and the board enjoy concurrent jurisdiction over this use, the commission by virtue of § 6-101(a) and the board by virtue of § 6-95(a)(2)(A). The latter regulation provides as follows:
"Sec. 6-95 Permitted Accessory Uses
(a) Customary uses incident to the principal uses in Sections 6-93 shall be permitted in RA-4, RA-2, RA-1, R-2- and R-12 zones and R-7 zone (by the cross reference in Section 697(b)(1) to RA-4 zones permitted uses) and R-6 zone (by the cross reference in Section 698(b)(1) to R-7 zones permitted uses). They shall include: (2/8/94).
(2) (A) Private garages, barns, sheds, shelters, silos and other structures customarily accessory to residential estates, farms, or resident uses provided no accessory building shall exceed the gross floor area established below, unless authorized by the Board of Appeals as a special exception:
RA-4 and RA-2 zones: 1,200 square feet
RA-1 and R-20 zones: 800 square feet
R-12, R-7, R-6 and RMF zones: 600 square feet
In granting a Special Exception, in addition to considering all the standards of Sec. 6-20(c), and Standards of Sec. 6-17(d)(4), (5), (6), (9), the Board of Appeals shall find in residential zones that the accessory structure by virtue of its scale, design, size or location on the site is compatible with its zone and individually or in combination with other accessory structure by virtue of its scale, design, size or location on the site is compatible with its zone and individually or in combination with other accessory structures, maintains the appearance of being subordinate to the principal structure. (1/1/87)."
The parties have treated the propriety of the accessory use as an issue over which the commission properly exercised its jurisdiction and have devoted their briefs and arguments to the plaintiffs’ claim that the commission granted approvals for "an illegal, unpermitted use." Although the parties have not addressed the issue, the court must consider the threshold question of whether the invalidation of the special exception in the companion case renders the commission’s action moot in the present case. "When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." In re Romance M., 229 Conn. 345, 357 (1994). "[I]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time ... Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction ..." (Citations omitted; internal quotation marks omitted.) Lewis v. Gaming Policy Board, 224 Conn. 693, 698 (1993); id., 699. The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal." Peters v. Dept. of Social Services, 273 Conn. 434, 441 (2005). (Alternate citation omitted, emphasis added.) In the present case, the special permit at issue has arguably been rendered moot by the invalidation of the variances which relate to bulk and location of structures as well as the special exception to which the variances were integral. Because the absence of mootness is essential to jurisdiction, the court will look to an exception to the doctrine, namely the "capable of repetition yet evading review" exception. The circumstances which satisfy this exception are set forth in detail in Loisel v. Rowe, 233 Conn. 370 (1995). This court has analyzed those circumstances and concludes that the circumstances in the present case satisfy the essential elements of the exception. A brief discussion of the circumstances is in order.
By contrast, in the companion case, the plaintiffs focused on (i) the lack of substantial evidence that the riding arena is accessory to a farm or that the use itself is a farm and (ii) that the arena could not qualify as an indoor athletic use under § 6-95(a)(8).
It is clear from the record that the primary issue in this case, namely, whether the riding arena is a lawful accessory use is capable of repetition. The record reveals that the purpose of the riding arena is to create an Olympic training facility for equestrian sports. The court takes judicial notice that the next Olympic games at which this sport will be played will take place in 2020. Moreover, the plaintiffs have so stated in their briefs. Since the primary use of the facility if constructed would be by a member of the principal household it appears highly likely that a second application for a special exception will be filed with the board, modified to eliminate the need for reliance on the invalid variances. As for the remaining elements of the exception, the court concludes (a) that it is essential to the core purpose of the facility that the challenged action be fully litigated to permit sufficient time for preparation and training prior to 2020; (b) the party to be benefitted or harmed by the ultimate disposition of the case will be the same throughout the litigation, namely, a resident family member; (c) the issue is endowed with public importance simply because participation on an Olympic athletic team which has the potential to win a medal for the United States is a matter both of local and national interest and importance; and (d) if the issue is not adjudicated in this particular proceeding there is a strong probability that the delay inherent in the prosecution and litigation of a modified application will not be completed in time to afford an adequate opportunity for Olympic preparation and ultimate participation.
Having concluded that it is highly probable that a modified application will follow this decision, it is the court’s prerogative to address an issue which is likely to arise at retrial or in this case, a rehearing. For these reasons, the court will now turn to the issue of whether the commission acted properly in approving a special permit application for this accessory use. As indicated above, the parties have treated this appeal as if the commission approved the riding arena as an accessory use although § 6-94(a)(8) acknowledges that it is the board not the commission which has primary jurisdiction over "the keeping of more than six (6) horses" on a residential property through its special exception authority pursuant to § 6-95(a)(2)(A). The justification for this position may be found in § 6-101(a) which by its terms vests in the commission special permit review of all uses for which the board has granted a special exception pursuant to the grant of its generalized special exception authority under § 6-19 to § 6-21, as long as the use proposes a structure in excess of 150,000 cubic feet. Section 6-17 of the regulations makes it clear that whenever the commission authorizes a use by special permit it is required to "determine that the proposed use conforms with the overall intent of these regulations and the purpose of each zone, where defined." So in the present case the determination of whether the riding arena is a lawful accessory use in the RA-4 zone is made by each zoning agency, independently of one another. The court must now proceed to its determination of whether the commission acted illegally, arbitrarily or in abuse of its discretion in granting the special permit.
Where there will be a retrial it is proper for the court to provide guidance regarding the remaining issues in the case. Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 827 (1998). See also, Randazzo v. Pitcher, 17 Conn.App. 471, 474 (1989).
The plaintiffs do not attack the validity of the site plan approval separately from the special permit.
Standard of Review
"A special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulation ... Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by General Statutes § 8-2] ... Moreover, we have noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site ... we also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood ... thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district." (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 270 Conn. 447, 453-54 (2004).
"In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which ... [c]onclusions reached by [a zoning] commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [commission] ... The question is not whether the trial court would have reached the same conclusion ... but whether the record before the [commission] supports the decision reached ... if a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court ... cannot substitute its judgment as to the weight of the evidence for that of the commission ... The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given." (Citations omitted; internal quotation marks omitted.) Id., 453. Cambodian Buddhist Society of Conn. v. Planning and Zoning Commission, 285 Conn. 381, 426-27 (2008).
"... Acting in this administrative capacity, (on a special permit application), the [zoning commission’s] function is to determine whether the applicant’s proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and the statutes are satisfied." (Citations omitted; internal quotation marks omitted.) A.P. & W. Holding Corporation v. Planning and Zoning Board, 167 Conn. 182, 185 (1974) (emphasis added).
"It [the zoning commission] has no discretion to deny the special exception if the regulations and statutes are satisfied. When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision ... The zoning [commission’s] action must be sustained if even one of the stated reasons is sufficient to support it. (Citations omitted.) Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56-57 (1988)." (Internal quotation marks omitted.) Felsman v. Zoning Commission, 31 Conn.App. 674, 678 (1983).
" ... The evidence, however, to support any [reason stated by the planning commission for its action] must be substantial ... [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred ... The trial court must determine whether the commission has correctly interpreted its regulations and applied them with reasonable discretion ... The court can sustain the plaintiff’[s] appeal only upon a determination that the decision of the Commission was unreasonable, arbitrary or illegal." Pelliccione v. Planning and Zoning Commission, 64 Conn.App. 320, 326-28 (2001).
The Parties’ Claims
Although there is no discussion in the commission’s decision of whether the riding arena is a permitted accessory use that determination is implicit in the commission’s action in granting the special permit. The plaintiffs contend that the riding arena is not a permitted accessory use in the RA-4 zone because (a) the riding arena is not a farm as that term is used in § 6-95(a)(2)(A); (b) the riding arena is not "customarily accessory to residential estates, farms or residential uses" as set forth in this regulation; (c) the commission was incorrect when it stated on page two of its decision that "this application falls under § 6-94 and not § 6-95 because § 6-94(a)(8) applies to principal uses and not accessory uses"; and (d) § 6-94(a)(8) authorizes a facility "for care and raising of horses" not an equestrian training facility. Old Mill counters that (a) the riding arena is not a principal use but is a "shed, shelter or other structure customarily incidental to a residential estate or resident use" as these terms are used in § 6-95(a)(2); (b) the commission correctly held that the use is governed by § 6-95(a)(2); § 6-94(a)(8) permits this use as an accessory use. Each of these claims will be discussed in order.
The Farm Issue
The plaintiffs interpret Old Mill’s claim that the riding arena is a permitted accessory use to be based on the argument that the riding facility is a farm (see, e.g., p. 5 of plaintiff’s brief in chief). Old Mill interprets the plaintiff’s argument differently. Old Mill states that "the plaintiffs argue that the riding arena is not allowed because having horses is not an accessory use to a farm under § 6-95(a)(2)." (See p. 16 of Old Mill’s brief in chief.) Neither position is germane for the reasons that follow.
Section 6-95(a)(2) contains the word "farm." However, the word is not used to describe a permitted accessory use but rather to describe one of the categories of principal uses to which the accessory uses are "customarily incident and subordinate." The plaintiffs’ effort in the briefing to prove that the riding arena is not accessory to a farm and Old Mill’s effort in its presentation to the commission to prove that the arena is a farm are misplaced, irrelevant and reflect a misunderstanding of the meaning of § 6-95(a)(2). The reason for this is that the entitlement of Old Mill to the riding arena is based on the arena being customarily incidental or subordinate to a "residential estate" and/or a "resident use," not because it is a farm or incidental to a farm. This is the correct analysis of the sentence structure of the regulations.
Section 6-94(a)(8)
The plaintiffs assert that the keeping of more than six horses is a principal use and not an accessory use because with two exceptions all of the uses enumerated in § 6-94(a) are principal uses and not accessory uses which are only found in subsections (a)(9) and (b)(4)(a). Subsection (a)(9) permits "construction and use of accessory structures involved in the operation of a public underground utility when located in or abutting the street right-of-way and not exceeding one (1) story of thirty-five (35) feet in height" (emphasis added). Subsection (b)(4)(a) provides, in pertinent part, as follows: "Resident Medical Profession Office. The purpose of this amendment is to recognize that the office of a resident medical professional is not a low impact use that can blend harmoniously into all residential neighborhoods. This use involves high traffic generation and parking demand, delivery of specialized supplies and materials, and creation of wastes requiring unique handling and disposal. It has historically been allowed as an accessory used in residential neighborhoods." Subsection (b)(4)(b) states that "There shall be no other accessory use that might otherwise be permitted under any section of these regulations" (emphasis added). The plaintiffs’ argument is based on the fact that these two subsections are the only two subsections in the entirety of § 6-94 which refer to accessory structures or uses.
Because a question of proper statutory interpretation is involved, the court must go beyond the conventional scope of administrative review and conduct a plenary review of the commission’s actions. Alvord Investment, LLC. v. Zoning Board of Appeals, 282 Conn. 393, 416 (2007). "Ordinarily [trial courts afford] deference to the construction of a statute applied by an administrative agency empowered by law to carry out the statute’s purpose ... Cases that present pure questions of law, however, invoke a broader standard of review that is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily or in abuse of its decision ... Furthermore, when [an] agency’s determination of a question of law has not previously been subject to judicial scrutiny ... the agency is not entitled to special deference ... [It] is for the courts, and not administrative agencies, to expound and apply governing principles of law." (Internal quotation marks omitted.) Wood v. Zoning Board of Appeals, 258 Conn. 691, 698-99 (2001). Whether the Board properly interpreted and applied the relevant regulations depends upon whether it read the particular regulations "in the context of all the regulations, their evident purpose and policy, and recognized principles of zoning in general." Field Point Park Association, Inc. v. Greenwich Planning and Zoning Commission, 103 Conn.App. 437, 441 (2007).
The plaintiffs argue that of the numerous uses set forth in § 6-94 these are the only ones which are explicitly labeled "accessory structures and accessory use" and because none of the other uses in § 6-94 use the word "accessory," the other uses set forth in the regulation must be deemed to be principal uses. Old Mill on the other hand argues that the principal uses that are permitted in the RA-4 zone are set forth in § 6-93 which provides as follows:
"§ 6-93 Permitted Uses in RA-4, RA-2, RA-1, R-20 and R-12 Zones.
(a) The following principal uses are permitted in RA-4, RA-2, RA-1, R-20 and R-12 Zones and all other principal uses are expressly excluded:
(1) Detached single-family dwellings, one (1) per lot.
(2) Streets, parks, playgrounds, public school grounds and Town buildings and uses."
Old Mill contends that § 6-94 must be read in conjunction with § 6-95(a)(2)(A). The latter section clearly distinguishes between principal uses enumerated in § 6-93 on the one hand and accessory uses enumerated in the remainder of the section on the other hand. It is significant that the regulation does not refer to the § 6-94 uses as principal uses. Therefore, because "barns, sheds and other structures" are enumerated accessory uses to "residential estates and resident uses," when these barns and other structures are proposed for a location on the same lot as a principal use, they must be approved as a special exception by the board if the use will house more than six horses. There is nothing in § 6-94 which limits the other enumerated uses to principal uses. For example, a fallout shelter in subdivision (2) is often recognized as an accessory use to a principal use (one’s residence). Similarly, in subdivision (7) radio and television towers may be sought to enhance signal where there is a principal residential use. Further support for this interpretation is found in the requirement found in the last line of § 6-95(a)(2) which requires that the accessory use be "subordinate to the principal structure." (emphasis added). So if the board is charged with special exception review of a structure designed for more than six horses and if that facility is a "barn or other structure" then it must be subordinate to the principal residence. The court concludes that in announcing that this was a § 6-94(8) case the commission correctly construed the applicable regulations as they relate to one another in such a way as to promote their evident purpose and policy. Fieldpoint Park Association, Inc. v. Greenwich Planning and Zoning Commission, 103 Conn.App. at 441. But it was also a 6-95(a)(2)(A) case. The fact that the commission failed to verbalize this in its written decision is of no moment. "Regulations must be viewed to form a cohesive body of law," and they "must be construed as a whole and in such a way as to reconcile all their provisions as far as possible." (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn.App. 442, 462 (2001) cert. denied, 262 Conn. 928 (2002).
In Lauer v. Zoning Commission, 220 Conn. 455 (1991) the plaintiff claimed that the zoning commission acted illegally when it authorized by special permit a riding academy on a residential property as a second principal use in addition to the main residence. The court rejected that contention and held that a residence may act as an accessory use with a permitted special use, namely the riding academy.
Customarily Incidental/Accessory
The plaintiffs’ point here is that a covered riding arena whose floor area is in excess of 1200 square feet as authorized by § 6-95(a)(2)(A) is not customarily accessory to a principal use of a farm (see plaintiffs’ brief in chief, p. 10). The brief then argues that Old Mill failed to provide substantial evidence that a riding arena is customarily accessory to a farm. The court has scoured the record and Old Mill’s briefs and is unable to uncover any place where Old Mill claims that the arena is accessory to a farm. Old Mill may have argued before the commission that the proposed use possesses many characteristics of a private horse farm but it did not argue that such status as a horse farm satisfied the regulation. The plaintiffs’ briefing is devoid of any useful analysis of why the use is not accessory to a "resident use" or "residential estate" as those terms are used in the regulation. In their reply brief and at oral argument they asserted that "there is not a shred of evidence in the record- that the riding arena structures are customarily accessory to residential estates and therefore the record fails to contain substantial evidence that the use is a customarily assessor use." The court disagrees.
The record in this case demonstrates that there was substantial evidence that there are a significant number of horseback riding stables located in the RA-4 zone which comprises roughly two-thirds of the land area of the town. In addition, there is evidence that there "are many horse farms not far from this particular property" (Tr. 10/25/17, p. 149) including one at 39 John Street that "isn’t too far from here" (Tr. 1025-17, p. 124). In fact Old Mill’s horse expert testified to a total of eleven "off the top of her head." The exact testimony is as follows: Ms. Hickey:- "and so I just tried to think of some of the farms in the very immediate area and I have come up with numbers of them. We have Horsefield Farm and Lake Avenue, which is a 4-acre piece of property with a 12-stall barn and an indoor arena. And then there’s Kelsey Farm, also on Lake Avenue, which is a little under 10 acres with 18 stalls and an indoor arena. And then Fairplay Farm, which is located in Conyers Farm area with 7 1/2 acres and 16 stalls and a 90 x 200 indoor. And then Steeplechase Farm on Taconic is the one that we had talked about before with the 8 stalls and the indoor. And then of course there’s Lion’s Share, which has 36 stalls and 100 x 240 indoor arena. And numbers of others. There are one, two, three, four, five, six more.
So I came up with quite a few of them just off the top of my head and each of these I went ahead and Googled and tried to map out how close they might be to this property and each of them was within no more than 6 miles and most of them within 1 or 2 miles. So I thought that that was an interesting thing to point out. Are there any other questions? Okay. Good."
Testimony of non-experts may justify the denial of an application. Milardo v. Inland Wetland Commission, 27 Conn.App. 214 (1992). On the other hand, the commission was not required to give credence to any witness, including an expert. Huck v. Inland Wetlands and Watercourses Agency, 203 Conn. at 542. A zoning commission may however, rely on its members’ own personal knowledge concerning matters readily within their competence, such as traffic congestion, street safety and property values. Feinson v. Conservation Commission, 180 Conn. 421, 427 (1980). Moreover, a zoning commission may lawfully rely on material non-record facts that it has learned through investigation as long as these facts were available to the interested parties prior to the hearing. Crabtree Realty Co. v. Planning and Zoning Commission, 82 Conn.App. 559 (2004). The existence of these numerous horse farms were readily available to the plaintiffs as well as to the commission through appropriate investigation of the public records of the town tax assessor. See G.S. § 12-55; 12-64(a). Tax assessments are a matter of public record under G.S. § 12-55(a); Cherniske v. Jajer, 171 Conn. 372, 377 (1976); the openness of these records is intended to permit taxpayers to evaluate the accuracy and fairness of values assigned to their properties, Rocky Hill, Inc. District v. Hartford Rayon Corp., 122 Conn. 392, 403 (1937). These records include assessor’s field sheets which describe the improvements on the property. See Waterbury Petroleum Products, Inc. v. Canaan Oil and Fuel Co., 193 Conn. 208, 218, n.11 (1984). So, there can be no question that there are within the Town of Greenwich numerous private horse farms which contain riding facilities which constitute an integral part of the use of the property. While the record does not contain a detailed description of these facilities, we do know that Fairplay Farms has an arena that is 18,000 square feet in area and Lion’s Share has an arena of 24,000 square feet whereas the subject arena was approved at 8,478 square feet. Moreover, the majority of these facilities are located within one or two miles of the subject property.
Neither principal use nor accessory use is defined in the regulations. However, the final clause of § 6-95(a)(2)(A) requires that accessory structures "maintain the appearance of being subordinate to the principal structure by virtue of its scale, design, size or location." Additionally, the introductory sentence of the regulation requires that the use be a "customary use incident to the principal use." (Emphasis added.) The judicially created definition corresponds with these requirements. The "incidental component of accessory use standard incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance ... [It] also incorporate(s) the concept of reasonable relationship with the primary use." (Parenthesis eliminated.) Loring v. Planning and Zoning Commission, 287 Conn. 746, 761 (2008). The Loring court went on to explain that " ‘An accessory use is determined specifically by reference to the primary use of the property to which it is incidental. See Graff v. Zoning Board of Appeals, 277 Conn. 645, 658-59 (2006); Belt Havurah v. Zoning Board of Appeals, 177 Conn. 440, 447-48 (1979); Fox v. Zoning Board of Appeals, 146 Conn. 70, 74-75 (1958). As our seminal case on accessory uses explains, custom is determined by reference to "similarly situated properties," not by reference to the permitted use defined at its highest level of abstraction. See Lawrence v. Zoning Board of Appeals, supra, 158 Conn. 513 ("In applying the test of custom, we feel that some of the factors which should be taken into consideration are the size of the lot in question, the nature of the primary use, the use made of the adjacent lots by neighbors and the economic structure of the area. As for the actual incidence of similar uses on other properties, geographical differences should be taken into account, and the use should be more than unique or rare, even though it is not necessarily found on a majority of similarly situated properties." [Emphasis added.] ); see, e.g., id., 514 (specifically considering "whether the raising of chickens and goats was accessory use- one which was subordinate and customarily incidental to property located in the center or town and used for residential purposes," not whether it was customary to all residential properties [emphasis added] ); Sun Cruz Casinos, LLC v. Hollywood, 844 So.2d 681, 684 (Fla.App. 2003) (viewing permitted use specific to actual use as "restaurant with frontage" on intracoastal waterway, not restaurants generally, when concluding that trial court properly determined that no customary association existed between gaming boat operations and waterfront restaurants to support valid accessory use); Simmons v. Zoning Board of Appeals, 798 N.E.2d 1025 (Mass. 2003) (citing Lawrence and considering [***35] [*768] size of lot and [**508] rural character of area, rather than just classification of residential property, to determine whether maintaining two horses and stable is valid accessory use), review denied, 803 N.E.2d 333 (Mass. 2004); State v. P.T. & L Construction Co., 389 A.2d 448 (N.J. 1978) (viewing permitted use specific to actual uses as uses"). Accordingly, "the legitimacy of a proposed accessory use must be considered in light of the actual permitted use and not a broad generalization thereof." Id. at 767. (alternate citations omitted).
The court will now apply the factors which Loring requires this court to take into consideration.
Size of lot . The property is oversized for the RA-4 zone. In fact it is more than three times the lot size required for the zone.
Nature of primary use . The principal use is that of a residence which houses family members who will utilize the facility for Olympic equestrian training.
Character and economic structure . The neighborhood is comprised of house lots which are in excess of four acres and is improved with substantial homes, many served by accessory structures. At the time it acted, the commission was well aware of the character of the neighborhood including the upscale nature of neighboring properties many of which can be classified as mansions. In other words, the RA-4 zone contains many residential estates.
"Mansion" is defined as "a large imposing house; stately residence." Webster’s New World Dictionary, 2d Coll. Ed. at 863.
"Estate" is defined as "landed property; individually owned, piece of land containing a residence, esp. one that is maintained by great wealth." Webster’s New World Dictionary, 2d. Coll. Ed. at 479.
Similar uses . As discussed earlier, the record before the commission is replete with at least eleven examples of horse farms throughout the RA-4 neighborhood which have both outdoor and indoor riding arenas. Pertinent to this characteristic is that all of these uses are located north of the Merritt Parkway where all properties are classified RA-4.
The only exception is the community of Banksville which is zoned for small lot development which could not accommodate such a use and which by comparison to the RA-4 neighborhood is infinitely smaller in geographical area.
Uniqueness . The use should be and clearly is more than unique or rare although not found on a majority of the properties in the RA-4 zone. As the New Hampshire Supreme Court put it, "While the strength or degree of the customary or habitual association does not lend itself to definition by formula, and while the combination need not occur in a majority of instances of the principal use, the uses must be associated with a frequency that is substantial enough to rise above rarity." (Citation omitted.) Forster v. Town of Henniker, 118 A.3d 1016, 1026 (N.H. 2015).
This court concludes that the number of similar accessory uses, though varying in size, number of structures and intensity of use comprise a sufficient foundation to meet the multifactored standard enunciated in the Loring decision.
In an unreported decision of the Pennsylvania Commonwealth Court a similar set of facts caused the court to uphold a special exception granted for an indoor riding rink as accessory to a principal residential use. In addition to the house, the property contained a barn, cottage, garage, corn crib and an outdoor riding ring on eighteen acres of land. In its analysis the court referred to a similar though distinguishable case of Tennyson v. Zoning Hearing Board, 952 A.2d 739 (PA. CMNTH, 2008) which itself is instructive to the present case.
The Pennsylvania Commonwealth Court is an intermediate Appellate Court.
"In Tennyson, the landowner sought a special exception to construct a stable and other accessory facilities. The accessory facilities included one indoor riding ring and two outdoor riding rings. The landowner provided the testimony of an equestrian design expert. He testified that it was very common to have an indoor or outdoor riding ring in conjunction with a stable.
In Tennyson, the board determined that the proposed use of the riding rings qualified as an accessory use to the stable. The trial court agreed and a neighboring landowner appealed to this Court. The neighbor argued that the proposed indoor riding ring was twice the size of the proposed stable and that the record was devoid of evidence to support the conclusion that the riding ring was subordinate and incidental to the proposed stable.
"We determined that the size of an accessory use alone did not determine whether or not it was incidental or subordinate to the principal use. We found that the record established that the primary purpose of the stable would be to board horses and that the indoor riding ring would be used to exercise and train the horses. Plus, an expert testified that indoor and outdoor riding rings were commonly associated with stables." Palmer v. Zoning Hearing Board, No. 466 C.D. 2009, filed October 21, 2009.
Distinguishing Palmer from Tennyson the court noted that the applicable zoning regulation permitted as an accessory use a "stable, barn or other structure " (emphasis added). The court noted further that the word "other" in its correct context describes structures similar to those preceding it, namely a stable and a barn. Similarly in the present case, § 6-95(a)2 employs the words "barns, sheds, shelters, silos and other structures " (emphasis added). Thus, an "other structure" refers to a structure which is similar to the structures which precede the words, namely, a "barn, shed, shelter or silo."
Accord: Thomas v. Zoning Hearing Board, 550 A.2d 1045 (Pa. 1988) where the court held that the maintenance of a stable and the keeping of horses are customarily incidental to the use of a residence and that it is of no moment that neither a majority nor a substantial number of lots within the neighborhood maintain stables or keep horses.
Care and Raising of Horses
For a final challenge to the special permit the plaintiffs assert that § 6-94(a)8 by its terms limits a facility designed for the keeping of more than six horses to "care and raising of horses" as those words appear in the final sentence and that a riding arena designed for Olympic equestrian training exceeds the limits set by the words "care and raising." Such an argument inspires the following query. What would be the purpose of caring for and raising horses if the purpose of such activities had no ultimate goal other than caring and raising. Such a statutory construction does not accord with common sense for the simple reason that it ignores the fact that the care and raising of a horse is obviously intended to render the horse useful for the purpose for which it was raised and cared for. It is common knowledge that the raising of horses is not an end in itself but a means to an end. The end purpose may vary and may include such end uses as trail riding, horse racing, dressage, breeding, towing farm equipment and general equestrian sport. And such end uses are not all inclusive. "Compelling principles of statutory construction ... require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. We must avoid a construction that fails to obtain a rational and sensible result that bears directly on the purpose the legislature sought to achieve." Turner v. Turner, 219 Conn. 703, 712-13 (1991). Caring for and raising horses for no purpose other than to care for and raise horses and for no other purpose is manifestly unrealistic. The court notes that the Pennsylvania Commonwealth court in Palmer explicitly recognized that "exercising and training the horses can be considered a form of care."
Having concluded in the companion case that the special exception granted by the board cannot survive the invalidation of the variances the court must now determine whether the same result would apply to the special permit which is the subject of the present case. The commission derived its jurisdiction over this application from § 6-101(a) because the use or uses are designed to be in excess of 150,000 cubic feet in volume above establish grade. It is obvious that a reconfiguration of the riding arena by reducing its height to twenty-five feet will change the cubic volume of the structure. Moreover the separation of the two residential units so as to create a separate structure will likewise affect cubic volume. Therefore, because this special permit like the special exception is dependent upon the variances, invalidation of the variances by this court must necessarily render the special permit null and void. Accordingly the appeal is sustained.